COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-17-00050-CV
IN THE MATTER OF D.S.
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 323-103611-16
MEMORANDUM OPINION1
On August 8, 2016, the State initiated in juvenile court a jurisdiction waiver
and transfer proceeding against twenty-three-year-old D.S. under section 54.02(j)
of the family code, alleging that when he was fifteen years old, he committed the
offenses of aggravated sexual assault of a child and indecency with a child by
contact. Following an evidentiary hearing, the juvenile court signed an order
1 See Tex. R. App. P. 47.4. waiving its jurisdiction over D.S.’s case and transferring it to criminal district
court. In two issues, D.S. appeals from that order. We affirm.
I. THE STATUTORY SCHEME
Title 3 of the Texas Family Code governs the proceedings in all cases
involving the delinquent conduct engaged in by a person who was a child at the
time the person engaged in the conduct. Tex. Fam. Code Ann. § 51.04(a) (West
Supp. 2016). In such cases, the juvenile courts have exclusive original
jurisdiction. Id. Relevant to this case, “delinquent conduct” includes “conduct,
other than a traffic offense, that violates a penal law of this state . . . punishable
by imprisonment or by confinement in jail.” Id. § 51.03(a)(1) (West Supp. 2016).
And the term “child” means a person who is
(A) ten years of age or older and under 17 years of age; or
(B) seventeen years of age or older and under 18 years of age who is alleged or found to have engaged in delinquent conduct or conduct indicating a need for supervision as a result of acts committed before becoming 17 years of age.
Id. § 51.02(2) (West Supp. 2016). Aggravated sexual assault of a child and
indecency with a child by contact are both violations of a state penal law that is
punishable by imprisonment. See Tex. Penal Code Ann. § 12.32(a) (West 2011)
(providing that a first-degree felony is punishable by imprisonment), § 12.33
(West 2011) (providing that a second-degree felony is punishable by
imprisonment), § 21.11(d) (West 2011) (providing that indecency with a child by
contact is a second-degree felony), 22.021(e) (West Supp. 2016) (providing that
2 aggravated sexual assault of a child is a first-degree felony). Thus, the juvenile
courts have exclusive original jurisdiction over all proceedings in which a
defendant allegedly committed the offense of aggravated sexual assault of a
child or indecency with a child by contact when he was fifteen years of age. Tex.
Fam. Code Ann. §§ 51.02(2), .03(a)(1), .04(a); see In re N.J.A., 997 S.W.2d 554,
555 (Tex. 1999) (stating that the juvenile court has exclusive, original jurisdiction
over all proceedings involving a defendant who is a child when the alleged
offense occurred).
But while Title 3 vests the juvenile courts with exclusive original jurisdiction
over all proceedings in such cases, it also provides that they generally have no
jurisdiction to conduct a disposition hearing involving, or to adjudicate, a person
who is eighteen years of age or older. See N.J.A., 997 S.W.2d at 555. Rather,
after a person has turned eighteen, the authority of the juvenile courts is
generally limited to doing one of two things: they can waive their exclusive
original jurisdiction and transfer the person to the appropriate district court or
criminal district court in accordance with the requirements of Texas Family Code
section 54.02(j), or they can dismiss the case. Tex. Fam. Code Ann. § 54.02(j)
(West 2014); see N.J.A., 997 S.W.2d at 556 (holding that juvenile court maintains
jurisdiction over a person who is eighteen years of age or older and allegedly
engaged in delinquent conduct when a child, but that “such jurisdiction is limited
to transferring the case under section 54.02(j) if all criteria are satisfied or to
dismissing the case”).
3 Section 54.02(j) provides as follows:
(j) The juvenile court may waive its exclusive original jurisdiction and transfer a person to the appropriate district court or criminal district court for criminal proceedings if:
(1) the person is 18 years of age or older;
(2) the person was:
(A) 10 years of age or older and under 17 years of age at the time the person is alleged to have committed a capital felony or an offense under Section 19.02, Penal Code;
(B) 14 years of age or older and under 17 years of age at the time the person is alleged to have committed an aggravated controlled substance felony or a felony of the first degree other than an offense under Section 19.02, Penal Code; or
(C) 15 years of age or older and under 17 years of age at the time the person is alleged to have committed a felony of the second or third degree or a state jail felony;
(3) no adjudication concerning the alleged offense has been made or no adjudication hearing concerning the offense has been conducted;
(4) the juvenile court finds from a preponderance of the evidence that:
(A) for a reason beyond the control of the state it was not practicable to proceed in juvenile court before the 18th birthday of the person; or
(B) after due diligence of the state it was not practicable to proceed in juvenile court before the 18th birthday of the person because:
(i) the state did not have probable cause to proceed in juvenile court and new evidence has been found since the 18th birthday of the person;
4 (ii) the person could not be found; or
(iii) a previous transfer order was reversed by an appellate court or set aside by a district court; and
(5) the juvenile court determines that there is probable cause to believe that the child before the court committed the offense alleged.
Tex. Fam. Code Ann. § 54.02(j). All five parts of section 54.02(j) must be met
before a juvenile court can waive its exclusive original jurisdiction and transfer a
person to criminal district court under that provision. N.J.A., 997 S.W.2d at 556–
57.
II. PROBABLE CAUSE
In his first issue, D.S. argues that the juvenile court abused its discretion
by waiving its exclusive jurisdiction and transferring his case to criminal district
court because the evidence presented at the hearing was insufficient to support
its finding that there was probable cause to believe he committed the offenses
alleged in the State’s waiver and transfer petition. See Tex. Fam. Code Ann.
§ 54.02(j)(5). Probable cause exists when there are sufficient facts and
circumstances to warrant a prudent person to believe that the suspect committed
or was committing the offense. See In re C.M.M., 503 S.W.3d 692, 702 (Tex.
App.—Houston [14th Dist.] 2016, pet. denied).
A. STANDARD OF REVIEW
We review a challenge to the sufficiency of the evidence supporting a
juvenile court’s findings of fact regarding a waiver and transfer determination
5 under traditional evidentiary-sufficiency principles. See Moon v. State,
451 S.W.3d 28, 47 (Tex. Crim. App. 2014); In re H.Y., 512 S.W.3d 467, 478–79
(Tex. App.—Houston [1st Dist.] 2016, pet. denied); see also In re G.B., No. 02-
17-00055-CV, 2017 WL 2871619, at *7–8 (Tex. App.—Fort Worth July 6, 2017,
no pet. h.). In determining whether there is legally sufficient evidence to support
the finding under review, we must consider evidence favorable to the finding if a
reasonable factfinder could and disregard evidence contrary to the finding unless
a reasonable factfinder could not. H.Y., 512 S.W.3d at 479 (citing Moon v. State,
410 S.W.3d 366, 371 (Tex. App.—Houston [1st Dist.] 2013), aff’d, 451 S.W.3d
28). If more than a scintilla of evidence supports the finding, then there is legally
sufficient evidence to support it, and a legal-sufficiency challenge fails. Id.
Under a factual sufficiency challenge, we consider all of the evidence presented
to determine if the court’s finding is so against the great weight and
preponderance of the evidence as to be clearly wrong and unjust. Id.
If the juvenile court’s findings are supported by legally and factually
sufficient evidence, then we review the ultimate waiver decision under an abuse
of discretion standard. See Moon, 451 S.W.3d at 47; H.Y., 512 S.W.3d at 479.
To determine whether the juvenile court abused its discretion by waiving its
jurisdiction and transferring a juvenile defendant to criminal district court, we ask
whether it acted without reference to guiding rules or principles in reaching its
decision. See Moon, 451 S.W.3d at 47.
6 B. ALLEGED OFFENSES
In its waiver and transfer petition, the State alleged that on or about May 1,
2009, D.S. committed three counts of aggravated sexual assault of a child by
intentionally or knowingly (1) causing the anus of D.R., a child younger than
fourteen years of age, to contact the sexual organ of D.S.; (2) causing the
penetration of the mouth of D.R., a child younger than fourteen years of age, by
D.S.’s sexual organ; and (3) causing the sexual organ of D.R., a child younger
than fourteen years of age, to contact the mouth of D.S. See Tex. Penal Code
Ann. § 22.021(a)(1)(B), (a)(2)(B) (West Supp. 2016). It also alleged that on or
about May 1, 2009, D.S. committed two counts of indecency with a child by
contact by (1) engaging in sexual contact with D.R., a child younger than
seventeen years of age, by touching D.R.’s sexual organ with intent to arouse or
gratify the sexual desire of D.S.; and (2) causing D.R., a child younger than
seventeen years of age, to engage in sexual contact by causing, with intent to
arouse or gratify D.S.’s sexual desire, D.R. to touch the sexual organ of D.S.
See id. § 21.11(a)(1), (c) (West 2011).
C. EVIDENCE
The only evidence presented at D.S.’s waiver and transfer hearing was the
testimony of two witnesses: Corporal Benjamin Banes, who, during the time
relevant to this appeal, was a detective with the Fort Worth Police Department
assigned to the Crimes Against Children Unit, and Patsy Paxton, a Tarrant
County Juvenile Services court officer. Corporal Banes testified that he had
7 been assigned a case of sexual assault of a child involving D.S. after D.R.’s
father, A.R., phoned police on January 4, 2015, to report that D.R. had been
sexually assaulted. He testified that during the course of his investigation, he
interviewed D.R. about the alleged sexual assault. D.R. told Corporal Banes that
during the spring of his fifth grade year, D.R. and D.S. were at D.R.’s residence
in Fort Worth when D.S. caused D.S.’s sexual organ to contact D.R.’s anus; that
D.S. caused D.S.’s sexual organ to penetrate D.R.’s mouth; that D.S.’s mouth
contacted D.R.’s sexual organ; that D.S. touched D.R.’s sexual organ or genitals;
and that D.R. touched D.S.’s sexual organ or genitals. Corporal Banes testified
that his investigation revealed that at the time this alleged conduct occurred, D.R.
would have been eleven years old, and D.S. would have been fifteen. Corporal
Banes stated that during his investigation, he did not receive any information that
D.R. was being untruthful or that he had made up the allegations against D.S.
On cross-examination, D.S.’s counsel attempted to develop a line of
questioning intended to establish that D.M., another person who shared D.S.’s
first name, was the person who had sexually assaulted D.R. and that D.R. had
misidentified D.S. as the person who had allegedly sexually assaulted him. To
establish that theory, D.S.’s counsel referred to a video of an interview Corporal
Banes conducted of A.R. The video, however, was not introduced into evidence
at D.S.’s waiver and transfer hearing and is not a part of our record. And
Corporal Banes testified that he did not remember there having been two
persons mentioned with D.S.’s first name during the course of his investigation.
8 Corporal Banes did, however, acknowledge that although D.S. had been a
childhood friend of D.R.’s older brother for many years, D.R. was not able to
provide D.S.’s last name when Corporal Banes interviewed him. However,
Corporal Banes also testified that he was able to identify D.S. as the person who
had committed the alleged sexual assault against D.R. because A.R. had
provided him with a Facebook-type photograph with D.S.’s face circled and told
him that the person indicated in that photograph was the person who D.R. said
had committed the alleged sexual assault.
Paxton testified that part of her duties as a Tarrant County Juvenile
Services court officer included performing psychological or prediagnostic
evaluations of respondents before the juvenile adjudication process. She
testified that although the juvenile court had ordered that a psychological
evaluation be performed on D.S., one had not been obtained because D.S.’s
counsel never consented. She also testified that D.S.’s counsel had met with her
and stated that D.S. had passed a polygraph examination and was declining to
submit to the psychological evaluation. On cross-examination, Paxton testified
that she had read the polygraph results, that D.S. had been asked the same
questions that were before the juvenile court, and that the results stated there
was no deception indicated.
D. ANALYSIS
Considering the evidence favorable to the juvenile court’s probable-cause
finding and disregarding all contrary evidence unless a reasonable factfinder
9 could not, we conclude that more than a scintilla of evidence supports the trial
court’s finding that there was probable cause to believe that D.S. committed the
offenses alleged in the State’s waiver and transfer petition. See Moon,
451 S.W.3d at 47; H.Y., 512 S.W.3d at 479. Further, considering all of the
evidence presented at the waiver and transfer hearing, we conclude that the
juvenile court’s probable-cause finding is not so against the great weight and
preponderance of the evidence as to be clearly wrong and unjust. See Moon,
451 S.W.3d at 47; H.Y., 512 S.W.3d at 479. Accordingly, we conclude that the
juvenile court’s probable-cause finding is supported by legally and factually
sufficient evidence.
Having concluded that the trial court’s probable-cause finding is supported
by sufficient evidence, we now consider whether the juvenile court’s ultimate
waiver and transfer decision was an abuse of discretion. See Moon, 451 S.W.3d
at 47; H.Y., 512 S.W.3d at 479. The juvenile court’s waiver and transfer order
shows that the juvenile court based its decision to waive its jurisdiction and
transfer D.S.’s case to criminal district court on its conclusion that all five of family
code section 54.02(j)’s criteria were met. See Tex. Fam. Code Ann. § 54.02(j);
see also N.J.A., 997 S.W.2d at 556–57 (stating that all five parts of section
54.02(j) must be satisfied before a juvenile court can waive its exclusive original
jurisdiction and transfer a person to district court). The only reason D.S.
advances for his contention that the juvenile court’s waiver and transfer order
was an abuse of discretion is that the trial court’s probable-cause finding is not
10 supported by sufficient evidence. We have concluded otherwise. And we also
conclude that the trial court did not abuse its discretion by waiving its jurisdiction
and transferring D.S.’s case to criminal district court on the ground that all five of
section 54.02(j)’s criteria were met. See H.Y., 512 S.W.3d at 483 (holding
similarly).
We overrule D.S.’s first issue.
III. HEARSAY
In his second issue, D.S. argues that the trial court reversibly erred by
admitting hearsay at the waiver and transfer hearing. He complains specifically
about certain testimony from Corporal Banes.
A. THE CHALLENGED TESTIMONY
Corporal Banes testified that he had been assigned to investigate an
alleged sexual-assault-of-a-child case involving D.S. after the alleged victim’s
father, A.R., called the police to report that D.S. had sexually assaulted his child,
D.R. Corporal Banes testified that he interviewed D.R. as part of his
investigation and that D.R. told him what D.S. had done. When the State asked
Corporal Banes to tell the court what D.R. said D.S. had done, D.S. raised a
hearsay objection, which the trial court overruled.2 Corporal Banes answered
that D.R. told him that when he was eleven years old and D.S. was fifteen, “[D.S.]
2 With the sole exception of his objection during closing arguments that the State’s failure to call D.R. as a witness violated his right to confrontation, this hearsay objection is the only objection D.S. raised at the waiver and transfer hearing.
11 touched [D.R.’s] penis with his hand, had [D.R.] touch [D.S.’s] penis with [D.R.’s]
hand” and that D.R. “also described oral sex both ways and that [D.S.]
penetrated [D.R.’s] anus with [D.S.’s] penis[,] and then after that had happened,
[D.S.] again put his penis in [D.R.’s] mouth.” D.S. argues that the trial court
reversibly erred by admitting this testimony.
B. STANDARD OF REVIEW
We review a trial court’s decision to admit evidence for an abuse of
discretion. See Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221, 235 (Tex. 2011);
In re M.R., No. 02-15-00221-CV, 2015 WL 6759249, at *6 (Tex. App.—Fort
Worth Nov. 3, 2015, no pet.) (mem. op.). But even if a trial court’s decision to
admit evidence was erroneous, we nevertheless will not reverse the trial court’s
judgment unless the complaining party shows that such error was harmful—that
is, unless the complaining party shows that the error in admitting the evidence
probably caused the rendition of an improper judgment. See Tex. R. App. P.
44.1; Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).
C. ANALYSIS
The crux of D.S.’s argument is his contention that the rules of evidence
apply to a waiver and transfer proceeding under family code section 54.02(j).
D.S. argues that family code section 51.17(c) makes the rules of evidence
applicable to such proceedings. Section 51.17(c) provides, “Except as otherwise
provided by this title, the Texas Rules of Evidence applicable to criminal cases
and Articles 33.03 and 37.07 and Chapter 38, Code of Criminal Procedure, apply
12 in a judicial proceeding under this title.” Tex. Fam. Code Ann. § 51.17(c) (West
2014).
We need not and do not reach the question of whether family code section
51.17(c) makes the rules of evidence applicable to a waiver and transfer
proceeding conducted under family code section 54.02(j) because we conclude
that even assuming it does and that the trial court erred by admitting the
complained-of testimony, D.S. cannot show that any such error probably caused
the rendition of an improper judgment. Tex. R. App. P. 44.1; see H.Y.,
512 S.W.3d at 473–75, (declining to decide whether family code section 51.17(c)
makes the rules of evidence applicable to a juvenile waiver and transfer
proceeding because appellant could not show harm from the allegedly erroneous
admission of hearsay testimony). Error in the admission of objected-to evidence
is generally harmless if the complaining party later allows the same or similar
evidence to be introduced without objection. See Bay Area Healthcare Grp., Ltd.
v. McShane, 239 S.W.3d 231, 235–36 (Tex. 2007). The record here shows that
the same evidence to which D.S. objected came in without objection shortly
thereafter. Specifically, just a little while after the State asked Corporal Banes to
relate what D.R. had said to him during his interview and D.S. objected, the State
covered that very same ground with him again, this time without objection:
[State]: You described all the contacts that [D.R.] told you [D.S.] had with him, but I want to make sure I’m clear for the record.
[Corporal Banes]: Okay.
13 [State]: You described that [D.S.] caused [D.S.’s] sexual organ to contact [D.R.’s] anus?
[Corporal Banes]: Correct.
[State]: You described that [D.S.] caused [D.S.’s] sexual organ to penetrate [D.R.’s] mouth?
[State]: You described that [D.S.’s] mouth contacted [D.R.’s] sexual organ?
[State]: You described that [D.S.] touched [D.R.’s] sexual organ or genitals?
[State]: And you described that [D.R.] touched [D.S.’s] sexual organ or genitals?
[Corporal Banes]: That’s correct.
[State]: Okay. Did he describe anything else?
[Corporal Banes]: Not that I recall.
Thus, even assuming the rules of evidence applied to D.S.’s section-54.02(j)
waiver and transfer hearing and the trial court erred by admitting the testimony
that D.S. objected to, any such error was harmless because Corporal Banes
subsequently provided the very same testimony without objection. Tex. R. App.
P. 44.1; see Bay Area, 239 S.W.3d at 235–36 (Tex. 2007) (holding that appellant
failed to preserve complaint that trial court erred in admitting testimony over his
objection because the same evidence was later admitted without objection); see
14 also H.Y., 512 S.W.3d at 473–75 (holding that any error in admission of objected-
to evidence in juvenile transfer proceeding was harmless because virtually all of
the complained-of evidence was contained in a probation report, which was
admitted without objection). We overrule D.S.’s second issue.
IV. CONCLUSION
Having overruled both of D.S.’s issues, we affirm the juvenile court’s order
waiving its jurisdiction and transferring D.S.’s case to criminal district court.
/s/ Lee Gabriel
LEE GABRIEL JUSTICE
PANEL: GABRIEL, SUDDERTH, and KERR, JJ
DELIVERED: July 27, 2017